Legislature(2011 - 2012)CAPITOL 106
03/15/2012 03:00 PM HEALTH & SOCIAL SERVICES
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* first hearing in first committee of referral
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HB 343-DISCLOSURE OF CHILDREN'S RECORDS 3:39:30 PM CHAIR KELLER announced that the final order of business would be HOUSE BILL NO. 343, "An Act relating to disclosure of records of the Department of Health and Social Services pertaining to children in certain circumstances; and providing for an effective date." 3:39:44 PM REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, stated that the proposed bill would improve the sharing of information between Division of Juvenile Justice and the Office of Children's Services, which would help both agencies, as part of Department of Health and Social Services, to better protect and serve their clients. She explained that, although the affiliation was established in law, the actual relationship was not always so clearly understood by some staff, attorneys, and judges, and that the proposed bill clarified that the two agencies could share information. She stated that the proposed bill would also improve the ability to share information with former clients, specifically children who were once in state custody, and their parents or guardians who had a legitimate interest in the information. She gave examples of application to the military, and university studies, as legitimate needs for access to old records. She described the third aspect of the proposed bill, which would simplify and streamline the current law on public disclosure of juvenile information, which she described as cumbersome. She directed attention to the flow chart, titled "Current Disclosure Law," which outlined how cumbersome and time consuming the current practice was for each client. [Included in members' packets] She explained that the proposed bill would streamline and improve access to the process for making information available to the public. She then directed attention to a second flow chart, "Proposed Juvenile Disclosure Law - 2/6/2012." [Included in members' packets] 3:43:33 PM TONY NEWMAN, Program Officer, Division of Juvenile Justice, Department of Health and Social Services, stated that improvement to the abilities for the child protection system and the juvenile justice system to work together was embraced by advocacy systems nationwide, and that the proposed bill would make the statement that the two systems were dedicated to this goal. Directing attention to proposed AS 47.12.310(f) of the proposed bill, he pronounced that this would enable Division of Juvenile Justice to be more responsive to requests by individuals with a need for background information on juveniles. He explained that Section 5 of the proposed bill would improve an understanding by staff and the public for the need of specific public disclosures of juvenile offenses. He emphasized that the proposed bill would not change any laws regarding victim notification, and parents and agencies with "well established rights to juvenile information" would continue to receive the necessary information to effectively carry out their duties. He stated that laws surrounding child abuse and neglect were not affected by the proposed bill. He summarized by stating that the proposed bill would improve the ability of Division of Juvenile Justice to "manage, exchange, and disclose juvenile information while respecting the state's desire for its juvenile system to both serve public safety and help kids put delinquent behavior behind them." 3:47:21 PM REPRESENTATIVE SEATON directed attention to page 5, line 5 of the proposed bill, "the public shall disclose information to the public," if the minor subject was at least 13 years of age, and had committed any of the listed offenses, and then pointed to page 5, line 18, "the department has filed a petition seeking adjudication of a minor as a delinquent on the offense." He asked for an explanation to its meaning. 3:48:08 PM MR. NEWMAN, in response to Representative Seaton, explained that police identification of a juvenile suspected of an offense resulted in a referral to Division of Juvenile Justice, which was different than the adult system. He elaborated, declaring that referrals from law enforcement were given directly to Division of Juvenile Justice, and a juvenile probation officer was tasked with determining the dispensation of the report. The proposed bill allowed the probation officer to petition the court for adjudication on juvenile delinquency, and, if the court found probable cause, then the information would be available for public disclosure. 3:49:25 PM REPRESENTATIVE SEATON asked if this procedure referenced the seven offenses listed in proposed AS 47.12.315(a), lines 8 - 15, or did it also reference offenses similar to and including multiple truancies. 3:50:54 PM MR. NEWMAN replied that the seven listed offenses, but not lower offenses, were eligible for public disclosure if the juvenile probation officer filed a petition on one of those offenses. He noted that truancy was handled through the district court, not the Division of Juvenile Justice. 3:51:29 PM REPRESENTATIVE SEATON asked to clarify that proposed AS 47.12.315(b) was referring to subsection (a). REPRESENTATIVE MUNOZ explained that, although the seven offenses were eligible for required public disclosure, probable cause had to be first established. She described that probable cause was only determined after Division of Juvenile Justice filed a petition seeking adjudication of the minor as a delinquent, the court arraigned the minor, and the court entered a finding of probable cause. REPRESENTATIVE SEATON asked for clarification as subsection (b) read "may disclose," while subsection (a) read "shall disclose." CHAIR KELLER, pointing to page 5, lines 16 - 17, said that it described "may [disclose] only if one, two, and three." 3:53:20 PM REPRESENTATIVE SEATON asked to clarify that these were sequential, not parallel, statements, and that both were required before any release of public disclosure. 3:54:18 PM MR. NEWMAN expressed agreement, pointing out that probable cause had to be established. CHAIR KELLER, referring to the aforementioned flow charts, asked if there was less information required for disclosure under the proposed bill. MR. NEWMAN, in response, explained that under the current system, the intake probation officer determined whether to petition the offense to the court; whereas, under the proposed bill, the court would need to establish probable cause before any public disclosure. 3:55:54 PM REPRESENTATIVE KERTTULA asked to clarify that, under the current system, there was more public disclosure without a finding of probable cause. MR. NEWMAN agreed that no finding of probable cause was currently required for public disclosure. REPRESENTATIVE KERTTULA asked if, at a finding of probable cause, the juvenile could then be taken into custody. MR. NEWMAN stated that the initial advisement hearing for the juvenile, often after detention, was prior to a final adjudication hearing. He noted that the state could determine that a delinquent act had been committed during the advisement hearing. REPRESENTATIVE KERTTULA, observing that probable cause was the finding effect, asked if the proposed bill had added misconduct concerning weapons in the first through fifth degrees, as well as some drug crimes. She asked if the current law had an exception for misconduct involving a controlled substance, except for those listed under AS 11.71.040 and AS 11.71.050. 3:58:01 PM MR. NEWMAN reflected that the seven offenses enumerated in the proposed bill, page 5, lines 8 - 15, closely mirrored offenses which currently existed in law. He pointed out that robbery and misconduct involving weapons in the first through fifth degrees were included in the proposed bill, as they were often included in the use of a deadly weapon. He offered his belief that misconduct involving a controlled substance was also currently a requirement of the public disclosure law. 3:59:24 PM REPRESENTATIVE KERTTULA asked about any exceptions to the drug cases in the current law. She asked for a definition to misconduct involving weapons in the fifth degree. MR. NEWMAN replied that he would research it. 4:00:17 PM RODNEY DIAL, Lieutenant, Alaska State Troopers, testified in support of HB 343, explaining that the exchange of information would be beneficial to all the involved agencies. In response to Representative Kerttula, he defined misconduct with weapons in the fifth degree as knowing possession of a deadly weapon, other than a pocket knife, by someone 21 years of age or older; knowing possession of a firearm by someone 16 years of age or younger, without the consent of a parent or guardian; and, knowing possession of a firearm within the grounds of, or on a parking lot immediately adjacent to, an entity other than a private residence. 4:02:18 PM REPRESENTATIVE KERTTULA, posing a question, asked to clarify if an unemancipated minor, fifteen and a half years of age, owned a gun, would that be within the definition of misconduct involving weapons in the fifth degree. LT. DIAL replied that the consent of the parent or the guardian of the minor was the key to the definition. 4:03:11 PM REPRESENTATIVE SEATON asked if a hunting knife, instead of a pocket knife, was determined to be a deadly weapon. LT. DIAL, in response, said that the key would be if it was concealed on the person. He shared that a pocket knife was generally defined as shorter than 3 inches in length. REPRESENTATIVE SEATON expressed his concern for the inclusion in the proposed bill of misconduct involving weapons in the fifth degree, as many people carried hunting knives that did not fit the definition of a pocket knife, especially as they were often worn under a coat. 4:05:16 PM CHAIR KELLER pointed out that this definition would be considered in the next committee of referral, the House Judiciary Standing Committee. 4:05:42 PM LT. DIAL, in response to Representative Seaton, clarified that an affirmative defense for this charge was for someone to be "in their dwelling or on land owned by them, or was actually engaged in lawful hunting, fishing, trapping or another lawful outdoor activity, that necessitates the carrying of a weapon for personal protection." He declared that a minor, carrying a large knife in a lawful outdoor activity, would not pertain under this law. 4:06:17 PM REPRESENTATIVE KERTTULA offered her belief that neither misconduct involving weapons nor misconduct involving controlled substances were currently included in public disclosure laws. She expressed her concern for the necessity of these for public disclosure, unless the individual themselves wanted it. 4:07:07 PM MR. NEWMAN, directing attention to the current law, AS 47.12.315 (b), stated that public disclosure would apply to crimes in which a minor employed a deadly weapon. He shared of the struggle to define whether "employed" meant that the weapon was with the person when they committed the offense. He clarified that the Division of Juvenile Justice still maintained the ability to make a decision whether to petition the court for the offense, and that it was not until after this petition and after the court had maintained probable cause, for there to be public disclosure. 4:08:16 PM REPRESENTATIVE SEATON expressed his concern that the definition of the crime was for just having the knife, and not for having a weapon during the commission of the crime. He stated his support for the disclosure, but that he did not want it to become broader in scope than the intention. 4:09:43 PM REPRESENTATIVE MUNOZ asked Lt. Dial for a description of misconduct involving weapons in the fourth degree. 4:10:08 PM LT. DIAL explained that misconduct involving weapons in the fourth degree, a Class A misdemeanor, was a crime if the person possessed a firearm on their person or in the interior of the vehicle in which they were present, when the physical or mental condition of the person was impaired by the introduction of an intoxicating liquor or a controlled substance. He declared that the discharge of a firearm across a highway, or with reckless disregard for risk to property or physical injury to a person, was also defined as a fourth degree violation. He noted that switchblade or gravity knives, metal knuckles, and knowingly selling a firearm to someone less than 18 years of age were also included in the definition. 4:11:27 PM REPRESENTATIVE KERTTULA asked if misconduct involving weapons in the fifth degree was a Class B misdemeanor. LT. DIAL expressed his agreement. REPRESENTATIVE KERTTULA mused that the definition for a deadly weapon used to be "anything that under the circumstances in which it's used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury. So, that could be just about anything." She asked if a Class B misdemeanor was necessary for public disclosure. MR. NEWMAN assured that, although he did not have specific figures for its management in Division of Juvenile Justice, almost 50 percent of offenses were managed outside the formal court system. He pointed out that these misdemeanors, unlike felonies, were a level of offenses that were more likely to be managed outside the court system, and thereby, were not eligible for public disclosure. 4:13:18 PM CHAIR KELLER, agreeing with the concerns for the definition of a hunting knife as a deadly weapon, pointed out that the issue was misconduct with that knife, and that the Division of Juvenile Justice still had to file a petition seeking adjudication. 4:14:16 PM REPRESENTATIVE SEATON offered his belief that the inclusion for a knife longer than three inches in the definition of misconduct involving a deadly weapon allowed for someone who was not actively hunting to be charged. He expressed his desire to delete misconduct involving weapons in the fifth degree from the proposed bill. 4:15:17 PM REPRESENTATIVE MUNOZ, as the prime sponsor of the proposed bill, offered her support for the change. 4:15:58 PM CHAIR KELLER closed public testimony. 4:16:11 PM REPRESENTATIVE SEATON moved to adopt Conceptual Amendment 1, as follows: Page 5, line 15, following "through" Delete "fifth" Insert "fourth" There being no objection, Conceptual Amendment 1 was adopted. 4:16:46 PM REPRESENTATIVE MILLETT moved to report HB 343, as amended, out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, CSHB 343(HSS) was forwarded from the House Health and Social Services Standing Committee.